EXHIBIT 10.81
AMENDMENT NO. 3 AND CONSENT TO CREDIT AGREEMENT
This Amendment No. 3 and Consent (this "Amendment and Consent") is entered
into as of March 19, 2002 by and among ▇▇▇▇▇▇▇ NAVIGATION LIMITED, a California
corporation (the "Company"), the institutions from time to time parties hereto
as Lenders, ABN AMRO BANK, N.V. in its capacity as administrative agent (the
"Administrative Agent") for itself and the other Lenders, FLEET NATIONAL BANK,
as Syndication Agent (the "Syndication Agent"), and THE BANK OF NOVA SCOTIA, as
Documentation Agent (the "Documentation Agent" and, together with the
Administrative Agent and the Syndication Agent, the "Agents").
RECITALS
A. The Company, the Agents and the Lenders are party to that certain Credit
Agreement dated as of July 14, 2000 (the "Credit Agreement"). Unless otherwise
specified herein, capitalized terms used in this Amendment and Consent shall
have the meanings ascribed to them by the Credit Agreement.
B. The Company wishes to amend and restate the Subordinated Seller Note by
executing an Amended and Restated Subordinated Promissory Note in the form of
Exhibit A hereto (the "Restated Subordinated Seller Note").
C. On and subject to the terms and conditions hereof, the Company has
requested that the Lenders, and the Required Lenders are willing to, consent to
the execution of the Restated Subordinated Seller Note as set forth herein.
Now, therefore, in consideration of the mutual execution hereof and other
good and valuable consideration, the parties hereto agree as follows:
1. Amendment to Credit Agreement. Upon the "Effective Date" (as
defined below), the Credit Agreement shall be amended as follows:
(a) Each reference in the Credit Agreement and the Loan Documents
to the Subordinated Seller Note shall be deemed to be and include a
reference to the Restated Subordinated Seller Note.
(b) Section 2.5(b)(vi) of the Credit Agreement shall be amended
by deleting the last sentence of such Section and replacing such
sentence with the following:
(vi) The Company's obligation to prepay the Term Loans pursuant to an
issuance under this Section 2.5(b)(vi) shall not exceed the amount equal to
the Net Proceeds of such issuance less the amount of any required
prepayment of the Subordinated Seller Note with respect to such issuance in
accordance with Section 4.2 of the Subordinated Seller Note (but only to
the extent otherwise permitted by the subordination provisions of the
Subordinated Seller Note).
2. Consent. Subject to the conditions and effectiveness of this
Amendment and Consent and otherwise notwithstanding the provisions of any
Loan Document, and the Required Lenders hereby consent to the amendment and
restatement of the Subordinated Seller Note with the Restated Subordinated
Seller Note.
3. Representations and Warranties of the Company. The Company
represents and warrants that:
(a) it has the requisite power and authority and legal right to
execute and deliver this Amendment and Consent and to perform its
obligations hereunder. The execution and delivery by the Company of
this Amendment and Consent and the performance of its obligations
hereunder have been duly authorized by proper
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proceedings, and this Amendment and Consent constitutes a legal,
valid and binding obligation of the Company enforceable against it in
accordance with its terms, except as enforceability may be limited by
any bankruptcy, insolvency or similar law affecting the enforcement of
creditors' rights generally;
(b) Each of the representations and warranties contained in the
Credit Agreement and the other Loan Documents is true and correct in
all material respects on and as of the date hereof as if made on the
date hereof; and
(c) After giving effect to this Amendment and Consent, no Default
or Unmatured Default has occurred and is continuing.
4. Effective Date. This Amendment and Consent shall become effective
on the date (the "Effective Date") on which each of the following items
shall have been received by the Administrative Agent or satisfied, as the
case may be, all in form and substance satisfactory to the Administrative
Agent:
(a) duly executed Amendment and Consent, executed by the Company,
the Administrative Agent and the Required Lenders (without respect to
whether it has been executed by all the Lenders);
(b) a reaffirmation of guaranty in form and substance
satisfactory to the Administrative Agent, duly executed by each
Guarantor; and
(c) such other documents as the Administrative Agent or its
counsel may have reasonably requested.
5. Reference to and Effect Upon the Credit Agreement.
(a) Except as specifically amended above, the Credit Agreement
and the other Loan Documents shall remain in full force and effect and
are hereby ratified and confirmed.
(b) The execution, delivery and effectiveness of this Amendment
and Consent shall not operate as a waiver of any other right, power or
remedy of the Administrative Agent or any Lender under the Credit
Agreement or any other Loan Document, or constitute a waiver of any
provision of the Credit Agreement or any Loan Document, except as
specifically set forth herein. Upon the effectiveness of this
Amendment and Consent, each reference in the Credit Agreement to "this
Agreement", "hereunder", "hereof" or words of similar import shall
mean and be a reference to the Credit Agreement as amended hereby, and
each reference in the other Loan Documents to the Credit Agreement
shall mean and be a reference to the Credit Agreement as amended
hereby.
6. Costs and Expenses. The Company hereby affirms its obligation under
Section 11.6 of the Credit Agreement to reimburse the Administrative Agent
for all reasonable costs and out-of-pocket expenses (including reasonable
attorneys' and paralegals' fees and time charges of attorneys and
paralegals for the Administrative Agent) paid or incurred by the
Administrative Agent in connection with the preparation, negotiation,
execution, delivery, syndication, review, proposed or completed amendment,
waiver or modification, and administration of the Loan Documents.
7. GOVERNING LAW. ANY DISPUTE BETWEEN THE COMPANY AND THE
ADMINISTRATIVE AGENT, ANY LENDER OR ANY OTHER HOLDER OF OBLIGATIONS ARISING
OUT OF, CONNECTED WITH, RELATED TO, OR INCIDENTAL TO THE RELATIONSHIP
ESTABLISHED BETWEEN THEM IN CONNECTION WITH, THIS AMENDMENT AND CONSENT OR
ANY OF THE OTHER LOAN DOCUMENTS, AND WHETHER ARISING IN CONTRACT, TORT,
EQUITY, OR OTHERWISE, SHALL BE RESOLVED IN ACCORDANCE WITH THE INTERNAL
LAWS (BUT WITHOUT REGARD TO THE CONFLICTS OF LAWS PROVISIONS) OF THE STATE
OF ILLINOIS.
8. Headings. Section headings in this Amendment and Consent are
included herein for convenience of reference only and shall not constitute
a part of this Amendment and Consent for any other purposes.
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9. Counterparts. This Amendment and Consent may be executed in any
number of counterparts, each of which when so executed shall be deemed an
original but all of such counterparts shall constitute one and the same
instrument.
[signature pages follow]
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IN WITNESS WHEREOF, the Company, the Required Lenders and the
Administrative Agent have executed this Amendment and Consent as of the date
first above written.
▇▇▇▇▇▇▇ NAVIGATION LIMITED, as the Company
By: /s/ ▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇
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Name: ▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇
Title: CFO
ABN AMRO BANK N.V., as Administrative Agent, Issuing
Bank, Swing Line Bank, Alternate Currency Bank, and
Lender
By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇
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Name: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇
Title: Group Vice President
By: /s/ Jordan ▇. ▇▇▇▇▇▇▇
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Name: Jordan ▇. ▇▇▇▇▇▇▇
Title: Corporate Banking Officer
FLEET NATIONAL BANK, as Syndication Agent and Lender
By: /s/ ▇▇▇ ▇. ▇▇▇▇▇▇-▇▇▇▇▇▇▇
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Name: ▇▇▇ ▇. ▇▇▇▇▇▇-▇▇▇▇▇▇▇
Title: Director
THE BANK OF NOVA SCOTIA, as
Documentation Agent and Lender
By: /s/ ▇▇▇ ▇▇▇▇▇▇
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Name: ▇▇▇ ▇▇▇▇▇▇
Title: Director
ERSTE BANK, NEW YORK BRANCH, as Lender
By:__________________________________________________
Name:
Title:
▇▇▇▇▇ FARGO BANK, as Lender
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By:__________________________________________________
Name:
Title:
▇▇▇▇▇▇ BANK PLC, NEW YORK BRANCH, as Lender
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
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Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
Title: First Vice President
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
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Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Title: Vice President
BANK OF THE WEST, as Lender
By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇
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Name: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Title: Vice President
BARCLAYS BANK PLC, as Lender
By: /s/ ▇▇▇▇ ▇▇▇▇▇▇▇▇
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Name: ▇▇▇▇ ▇▇▇▇▇▇▇▇
Title: Director
NATIONAL CITY BANK OF KENTUCKY, as Lender
By:_________________________________________________
Name:
Title:
IBM CREDIT CORPORATION, as Lender
By:___________________________________________________
Name:
Title:
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